BAY HEAD-MANTOLOKING LAND COMPANY VS. BEVERLY KONOPADA(L-3361-15, OCEAN COUNTY AND STATEWIDE), A-4347-15T1

Background

After Superstorm Sandy, DEP and the Borough of Mantoloking pursued a federally funded beach/dune restoration project requiring easements from private beachfront owners; eminent domain was identified as a potential acquisition method.
The Borough (with DEP oversight) hired appraiser Richard Hall to prepare valuation reports for nine parcels to support good-faith negotiations and possible condemnation; nine draft appraisals were produced, five later finalized and disclosed to owners, four remained draft and were withheld.
Bay Head-Mantoloking Land Co. requested all appraisals (draft and final) under OPRA and the common law; the Borough/DEP denied disclosure citing the deliberative process privilege and attorney work-product/common-interest protections.
The trial court (Judge Ford) denied plaintiff’s request, finding the draft appraisals were pre-decisional/deliberative and protected work product, and that plaintiff had not overcome the common-law balancing test.
This appeal challenged those privileges and sought disclosure; the Appellate Division affirmed, holding both privileges applied and noting the dispute was effectively moot because the drafts had been provided to property owners during the appeal (and defendants represented they would provide them to plaintiff on request).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether draft appraisal reports are exempt from OPRA under deliberative process privilege	Drafts were not created when litigation was imminent and therefore are not pre-decisional or deliberative	Draft appraisals are pre-decisional, evaluative documents used to formulate negotiation/litigation strategy and thus are privileged	Court: Deliberative process privilege applies; drafts were pre-decisional and evaluative, protecting internal deliberations
Whether draft appraisals are protected as attorney work product/common-interest material	Appraisals were not prepared primarily for litigation; mere potential for future negotiations does not invoke work-product protection	Appraisals were prepared in anticipation of eminent domain negotiations/litigation and fall within work-product and common-interest protections	Court: Work-product doctrine applies; acquisition and litigation were sufficiently likely and documents protected
Whether plaintiff has a common-law right of access overcoming privileges	Plaintiff’s interest in access outweighs confidentiality; context of pre-suit eminent-domain negotiations is unlike ordinary litigation	Government interest in confidential, effective eminent-domain negotiations and property-owner privacy outweighs plaintiff’s bystander interest	Court: Plaintiff failed to make the greater showing required under common-law balancing to compel disclosure
Whether remand or further proceedings required given contested withholding	Plaintiff sought in-camera review/remand to inspect withheld materials	Defendants asserted privileges and offered sealed review; later agreed to disclose drafts to owners and (at oral argument) to plaintiff on request	Court: Affirmed denial; no remand needed because controversy rendered moot by disclosure to owners and defendants’ representation they will supply plaintiff on request

Key Cases Cited

Tractenberg v. Township of West Orange, 416 N.J. Super. 354 (App. Div. 2010) (distinguishes privilege where negotiations were remote and unlikely)
Ciesla v. N.J. Dept. of Health & Sr. Servs., 429 N.J. Super. 127 (App. Div. 2012) (applies deliberative process privilege to draft reports used to inform agency decisions)
Adler v. Shelton, 343 N.J. Super. 511 (Law Div. 2001) (discusses protection of communications between counsel and retained experts)
DeVesa v. Dorsey, 134 N.J. 420 (1993) (mootness doctrine; courts generally decline to decide moot controversies)